Regulation of navigation and vessel-source pollution in the Northern Sea Route - Article 234 and state practice

10 Regulation of navigation and vessel-source pollution in the Northern Sea Route: Article 234 and state practice     The seaway known as the Northern Sea Route (NSR), which passes through the ice-infested waters of the Russian Arctic, can potentially halve the distance between Europe and northeast Asia A voyage between Hamburg and Yokohama would be only 6,600 miles1 if the NSR is chosen, in comparison to 11,400 miles through the Suez Canal The NSR itself covers between 2,200 and 2,900 miles of often ice-covered waters Russia has put considerable efforts into developing the infrastructure for marine transport along the NSR In the changing geo-political picture of the Arctic in the post-Cold War era,3 Russia officially opened the NSR for foreign vessels in 1991 However, various factors, not least the difficult ice conditions, have so far prevented it from becoming widely used by international shipping Unlike most other sea routes, there is no single, set channel: ice conditions at any one place decide the further course The NSR crosses a series of individual seas – the Kara, Laptev, East Siberian and Chukchi Seas – which in turn are linked by almost sixty straits running through archipelagos including Novaya Zemlya, Severnaya Zemlya and the New Siberian Islands Surface vessels may encounter along the NSR natural obstacles of various kinds The continental shelf north of Russia is very shallow, in some straits only 8–13 metres This places absolute limits on the draught of vessels that can navigate It is frequently in just those areas with the shallowest depths that the most difficult ice conditions prevail Vessels would navigate the NSR in convoys The hazards involved in convoying have been succinctly characterised: ‘Being at sea is risky; being at sea in ice is twice the risk; being at sea in ice in convoy with an ice-breaker is three All references to miles indicate nautical miles In Russian legal regulation and political perception, the NSR stretches from the northern point of Novaya Zemlya as well as its straits in the west to the Bering Strait in the east The actual length of the NSR in each case depends on ice conditions; see Figure 10.1 See D Brubaker and W Østreng, ‘The Military Impact on Regime Formation for the Northern Sea Route’, in D Vidas and W Østreng (eds.), Order for the Oceans at the Turn of the Century (The Hague: Kluwer Law International, 1999), pp 261–90 221 Figure 10.1 The Northern Sea Route Navigation and pollution in the Northern Sea Route 223 times the risk.’4 Consequently, the international shipping community has thus far never seriously contemplated acquiring the necessary capability for using the NSR Neither has operation of this route seemed feasible, given the economic preconditions applying in the world market However, modern technology may render commercial use of the NSR a real option, with the attendant possible reductions in commercial shipping expenses that could mean increased revenues.5 This chapter will analyse the legal regime of navigation applying to the NSR, which is yet another controversial aspect of any future international use of this route We will examine Russian regulations governing navigation and vesselsource pollution, and the consistency of domestic provisions with current international law The latter includes Article 234 of the 1982 United Nations Convention on the Law of the Sea6 (the LOS Convention), as well as other relevant treaty law provisions and customary law Russian legislative practice will also be compared with that of the USA and Canada, which together govern most of the ice-covered exclusive economic zones in the Arctic The aim is to demonstrate how the state practice, including legislation, of relevant Arctic states has been shaping the contours of Article 234    :   It has been observed that: For decades, the NSR has been one of the most contentious legal and political issues in US–Soviet/Russian Arctic relations A major concern relates to the effects the NSR may have on the Arctic environment.7 Article 234 of the LOS Convention states:8 Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence G Watson, ‘Technical Aspects of Ice Navigation and Port Construction in Soviet Arctic’, in L Brigham (ed.), The Soviet Maritime Arctic (London: Belhaven Press, 1991), p 159 T Ramsland and S Hedels, ‘The NSR Transit Study (Part IV): The Economics of the NSR A Feasibility Study of the NSR as an Alternative to the International Shipping Market’, INSROP Working Paper, No 59 (Lysaker: Fridtjof Nansen Institute, 1996) Text reprinted in ILM, Vol 21, 1982, pp 1,261ff A Roginko, ‘Environmental Protection in the Soviet Arctic Seas’, in Brigham (ed.), The Soviet Maritime Arctic, pp 63–82 On Art 234, see also Vukas, Chapter in this book, as well as Rothwell and Joyner, Chapter in this book 224 R Douglas Brubaker Canada, the USSR and the USA negotiated Article 234 at the Third UN Conference on the Law of the Sea.9 Of these three, to date (8 June 1999) only Russia has ratified the LOS Convention This adds to the complexity of the legal picture concerning the scope of Article 234 regarding the NSR Russia is bound by Article 234 as treaty law The USA has expressly acknowledged Part XII of the LOS Convention, which also includes Article 234, as customary law.10 Canada is neither a party to the LOS Convention nor has it expressly acknowledged its Part XII as customary law All three states have, however, adopted relevant domestic legislation and made various declarations, which will be analysed below While it may be uncertain whether the entire Part XII is already customary law,11 it is important to realise that the Convention’s regime for prevention of vessel-source pollution12 incorporates the rules found in MARPOL 73/78,13 and as such may be applied by all three states in the EEZ Russia claims its entire Arctic EEZ, and possibly the high seas, to be subject to special coastal state rights for ice-covered areas It further claims that ice-covered straits of the NSR are part of its internal waters, supporting this by several theories, including that of historic waters enclosed by straight baselines.14 The USA, through its declarations and submerged navigation, has remained opposed to features of the Russian regime for ice-covered areas governing the NSR While the USA does accept an extensive coastal state prescriptive and enforcement jurisdiction for ice-covered areas, it has reserved its position with regard to ice-covered straits, equally so regarding those in the Russian and Canadian Arctic.15 In the US view, the Russian Arctic straits are international and thus subject to transit passage.16 In addition, US declarations have included protests against Russian Arctic baselines and objections to the application of the Russian legislation for the NSR to state vessels.17 Both the USA and Russia invoke national security when substantiating and warranting their respective stands The policy of adducing environmental arguments to restrict foreign shipping seems rather presumptuous, considering the poor Soviet/Russian environmental record in the area.18 Russian experts themselves have acknowledged the doubtful compliance of the Soviet fleet with strict 19 10 11 12 13 14 15 16 18 See D McRae, ‘The Negotiation of Article 234’, in F Griffiths (ed.), Politics of the Northwest Passage (Kingston, Ontario: McGill-Queens University Press, 1987), pp 98–114 Presidential Proclamation No 5030, Federal Register, Vol 48, 1983, p 605 (codified at Code of Federal Rules, Vol 3, section 5030) On Part XII and customary law, see the discussion by Vukas, Chapter in this book Arts 211 and 217–220 of the LOS Convention See P W Birnie and A E Boyle, International Law and the Environment (Oxford: Clarendon Press, 1992), pp 271 and 298–9 On MARPOL 73/78 and polar waters see Rothwell, Chapter in this book A Kolodkin and M Volosov, ‘The Legal Regime of the Soviet Arctic – Major Issues’, Marine Policy, Vol 14, 1990, pp 162–7 On the Canadian Arctic, see also Rothwell and Joyner, Chapter in this book J A Roach and R W Smith, Excessive Maritime Claims (Newport, RI: Naval War College, 1994), pp 17 48, 58, 200–15 and 227; and interview with J A Roach, The Hague, 13 July 1995 Ibid E Franckx, Maritime Arctic Claims – Canadian and Russian Perspectives (Dordrecht: Martinus Nijhoff, 1993), pp 33–4 and 192–3 On the Soviet/Russian environmental record regarding dumping of radioactive waste in the Arctic, see Stokke, Chapter in this book Navigation and pollution in the Northern Sea Route 225 environmental regulations, as well as the fact that about one-half of the vesselsource pollution in the Arctic in 1990 was of Soviet origin.19   : - ,   ,   Under Article 234 of the LOS Convention, the conditions for coastal states’ domestic laws and regulations for ice-covered areas fall within the following confines First, their area of application must be ‘within the limits of the EEZ’, where there are ‘particularly severe climatic conditions and the presence of ice covering such areas for most of the year’ Secondly, these must be ‘non-discriminatory’ and aim at preventing, reducing and controlling marine pollution from vessels Thirdly, they should have ‘due regard to navigation’ as well as ‘protection and preservation of the marine environment based on the best available scientific evidence’ Article 234 probably enjoys a broad scope of application due to its vague formulation.20 In implementing Article 234, the Soviet Union adopted various legislation As successor state to the Soviet Union, Russia has incorporated the entire comprehensive Soviet legislation, except when contradictory to the Russian Constitution, and has itself more recently adopted new Arctic legislation The 1984 Edict on the Economic Zone of the USSR21 (Economic Zone Edict) in Article 14 authorised competent Soviet agencies to: establish rules for the prevention, reduction, and control of pollution of the marine environment, as well as for safety of shipping, and ensure the observance of such rules in ice-covered areas or areas possessing special natural characteristics where pollution of the marine environment could inflict grave harm to the ecological balance or irreversibly disturb it The 1984 Edict on Intensifying Nature Protection in Areas of the Far North and Marine Areas Adjacent to the Northern Coast of the USSR22 (Environmental Edict) in its Article specified: In the marine areas adjacent to the northern coast of the USSR where specially severe climatic conditions and ice hindrances or increased danger for shipping and pollution of the marine environment could cause grave harm to the ecological balance or irreversibly disturb it, special navigation rules for vessels and other floating means shall be established by the competent Soviet agencies These rules shall provide for higher construction requirements for vessels and other floating means, for equipment and supplies, for the complement 19 20 21 22 See R Vartanov, A Roginko and V Kolosov, ‘Russian Security Policy 1945–96: The Role of the Arctic, the Environment and the NSR’, in W Østreng (ed.), National Security and International Environmental Cooperation in the Arctic – The Case of the Northern Sea Route (Dordrecht: Kluwer Academic Publishers, 1999), pp 53–102 D McRae and D Goundrey, ‘Environmental Jurisdiction in Arctic Waters: The Extent of Article 234’, University of British Columbia Law Review, Vol 16, 1982, pp 215–22 English translation reproduced in W Butler, The USSR, Eastern Europe and the Development of the Law of the Sea (London: Oceana, 1987), F 2, pp 1ff English translation reproduced in ibid., J 4, pp 1ff 226 R Douglas Brubaker and skills of the crew, shall prohibit navigation without pilotage or other escort, shall establish periods and areas closed for navigation, and also other measures ensuring the safety of shipping and the prevention, reduction, and control of pollution of the marine environment The said rules shall be published in Notices to Mariners Accordingly, in 1990 the Regulations for Navigation on the Seaways of the Northern Sea Route (NSR Regulations) were adopted.23 The objectives are stated in Article 2: on the basis of non-discrimination for vessels of all States, [to] regulate navigation through the Northern Sea Route for the purpose of ensuring safe navigation and preventing, reducing, and keeping under control marine environment pollution from vessels, since the specifically severe climatic conditions that exist in the Arctic Regions and the presence of ice during the larger part of the year bring about obstacles, or increased danger, to navigation while pollution of sea, or the northern coast of the USSR might cause great harm to the ecological balance, or upset it irreparably, as well as inflict damage on the interest and well-being of the peoples of the Extreme North The NSR Regulations contain provisions governing mandatory notification and authorisation to foreign vessels for navigating the NSR (Articles and 8); different forms of leading along the NSR (Articles and 7(4));24 special requirements for vessels and command personnel (Article 4); civil liability (Article 5); inspection (Article 6); order of navigation (Article 7); control of navigation (Article 8); temporary suspension of navigation in particular areas of the NSR (Article 9); removal of vessels off the NSR (Article 10); limitation of liability for the Northern Sea Route Administration (Article 11); and notification of polluting discharge (Article 12) The ‘special requirements’ refer to technical and operational rates and standards set forth in publications issued by the Northern Sea Route Administration (NSRA), including the Guide to Navigating through the Northern Sea Route (NSR Navigation Guide) and the Requirements for the Design, Equipment and Supplies of Vessels Navigating the Northern Sea Route (Design Requirements).25 Important features of the NSR Regulations include the possibility for application on the high seas, application to state vessels, mandatory payment of fees, and the introduction of specially protected areas within ice-covered areas These features of Russian legislation need to be examined not only in the light of Article 234 but also in the light of the relevant practice of other states 23 24 25 Regulations were approved by the USSR Minister of Merchant Marine, 14 September 1990 Russian text published in Izveshcheniya Moreplavatelyam (Notices to Mariners), No 29, 18 June 1991; English translation, as used in this chapter, published in Guide to Navigating Through the Northern Sea Route (St Petersburg: Head Department of Navigation and Oceanography, Russian Ministry of Defence, 1996), pp 81–4 An English translation is also available, with minor deviations, in International Challenges, Vol 12, 1992, pp 121–6 Russia has adopted a plethora of legislation; however only those provisions considered most central will be discussed Art 7(4) lists: (1) leading along recommended routes by shore-based pilotage; (2) aircraft-assisted leading; (3) conventional pilotage; (4) icebreaker leading; and (5) icebreaker-assisted pilotage Arts 1(5) and of the NSR Regulations English translation of the Guide to Navigating Through the Northern Sea Route An English translation of the Design Requirements is in ibid., pp 317–23 Navigation and pollution in the Northern Sea Route 227 Legislation governing vessel-source pollution within the Arctic EEZ: ‘due regard to navigation’ ‘Due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence’26 is an express condition with which coastal states must comply when they unilaterally adopt and enforce their laws and regulations governing vessel-source pollution in ice-covered areas within the limits of the EEZ These laws and regulations may provide for design, construction equipment, crewing, discharge and safety standards for navigation Several views exist regarding the meaning of ‘due regard to navigation [etc.]’ in the context of Article 234, ranging from traditional freedom of navigation and innocent passage, passage rights in the territorial sea applicable to the EEZ, passage rights varying according to the status and circumstances of the waters in question, to extensive coastal state jurisdiction in the EEZ limited only by navigation upon permit.27 The first view may likely be the most technically-legally sound Article 234 expressly restricts its own scope to the EEZ, which under the LOS Convention is defined as ‘an area beyond and adjacent to the territorial sea’,28 not extending ‘beyond 200 miles from the baselines’,29 where all states enjoy, inter alia, the freedom of navigation.30 However, it would be absurd to be able to exercise greater rights in the EEZ than in the territorial sea Russian legislation, but also that of Canada and the USA, as will be seen, support the view on extensive coastal state jurisdiction Most of the provisions contained in the Russian Arctic legislation far exceed limitations to innocent passage, and encompass both the territorial sea and the EEZ Article 234 aims at preventing, reducing and controlling vessel-source pollution which can cause ‘major harm to or irreversible disturbance of the ecological balance’ A main objective of the Russian provisions is to prevent, reduce and control vessel-source pollution of its Arctic marine environment, since it might cause ‘great harm to the ecological balance, or upset it irreparably’ as well as ‘inflict damage on the interests and well-being of the peoples’ of the Russian Arctic.31 As we have seen, Russia has included ‘safety of shipping’ as a goal to environmental considerations under Article 14 of the Economic Zone Edict and Article of the Environmental Edict However, where as a coastal state it has special rights based on Article 234, the requirement of that Article to have ‘due regard to navigation [etc.]’ may be questioned The NSR Regulations require that the owner or master of a vessel intending to navigate the NSR submits to the NSRA a notification and a request for 26 27 29 This expression will be referred to as ‘due regard to navigation [etc.]’ hereinafter See A E Boyle, ‘Legal Regimes of the Arctic – Remarks’, American Society of International Law 28 Proceedings, Vol 82, 1988, pp 327–8 Art 55 of the LOS Convention 30 31 Ibid., Art 57 Ibid., Art 58(1) Art of the NSR Regulations 228 R Douglas Brubaker leading,32 and that the vessel satisfy the special requirements.33 The NSRA shall then consider this application and inform of the possibility of leading through the NSR,34 which implies authorisation of navigation These requirements are clearly contrary to Articles 17 and 58 of the LOS Convention, guaranteeing innocent passage in the territorial sea and freedom of navigation in the EEZ, respectively They may, however, arguably be permitted under a broad interpretation of ‘due regard to navigation [etc.]’, due to the dangers of navigation in ice-infested waters Leading, especially in ice-bound straits, as required under Article 7(4) of the NSR Regulations, seems reasonable and gives substance to preventing, reducing and controlling vessel-source pollution.35 However, the NSR Regulations also seem to allow for the possibility of complete prohibition of navigation This may be deduced from the vaguely phrased passage in Article 7(4), which allows the mandatory prescription of leading in ‘other regions’, as well as from Article 7(1) which states that the NSRA will determine the beginning and end of the navigational period taking into account, inter alia, ‘other conditions’ Article 9, which will be discussed below, additionally allows for suspension of navigation in cases where ‘an obvious necessity of environment protection or safe navigation’ so demands Thus, due to the open-ended prohibition of navigation without pilotage or other escort under the NSR Regulations,36 it seems doubtful whether ‘due regard to navigation [etc.]’ is actually taken Furthermore, the NSR Regulations require mandatory ‘payment for the services rendered to vessels’,37 which also may raise a question regarding ‘due regard to navigation [etc.]’ Under international law, innocent passage may not be hampered by the coastal state, and neither can charges be levied unless ‘specific services’ are rendered.38 Such specific services probably include pilotage or rescue services, but charges shall be levied without discrimination.39 For navigation in the EEZ, charging fees is contrary to freedom of navigation, and may be subject only to pollution prevention provisions giving effect to and conforming to ‘generally accepted international rules and standards’ It may, however, be argued that the fees required under the NSR Regulations are a necessity for the protection of the marine environment Pilotage and rescue services, though applicable to navigation through the EEZ, may be required by the natural conditions of the NSR However, for innocent passage under Article 26 of the LOS Convention fees are allowed only on a case-by-case basis for ‘specific services rendered to the ship’, and therefore not by reason of mere passage as such through the territorial sea It would thus probably be exaggerated 32 35 36 38 Ibid., Art 3(1) This should be in compliance with the form and time stated in the NSR Navigation 33 34 Guide Art of the NSR Regulations Ibid., Art 3(2) Such compulsory ice-breaker assisted pilotage is established under Art 7(4) of the NSR Regulations in four straits, due to the adverse navigational situation and ice conditions 37 See Art of the Environmental Edict Art 8(4) of the NSR Regulations See Arts 15(1) and 18(1) of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (UNTS, Vol 516, pp 205ff); and Arts 24(1) and 26 of the LOS Convention See the discussion in R R Churchill and A V Lowe, The Law of the Sea, 2nd edn (Manchester University Press, 1988), 39 p 79 For a discussion concerning discrimination see below in this chapter Navigation and pollution in the Northern Sea Route 229 to allow expanded coastal state rights regarding obligatory fees for passage through an ice-covered EEZ Services surrounding icebreakers and ice-strengthened vessels, for which fees could be charged under the NSR Regulations, would likely not be needed if a relatively ice-free season occurred, as was the case during the summer of 1995 Since any mandatory blanket fees may in fact serve to prohibit navigation, their introduction is likely to exceed even a liberal interpretation of ‘due regard to navigation [etc.]’ Enforcement measures – including inspections if deemed necessary, stopping, detention and arrest, suspension if deemed necessary and removal for violations – apply under the Russian legislation.40 It may be questioned whether this strict enforcement of provisions, permitting navigation only in special instances and largely dependent upon official discretion, does not provide a near prohibition of navigation Casting some doubt upon how genuine is the objective of Arctic environmental protection, upon which the Russian legislation is purportedly based, Article of the Environmental Edict requires a ‘positive ecologically substantiated opinion’ of authorised agencies for various activities, but not for vessel traffic It is only for the construction or renovation of various installations and structures at sea that an environmental impact assessment (EIA) is required Similarly, an EIA requirement is not explicitly included within the scope of Article of the NSR Regulations, in connection with requirements for vessels, nor is it found in Article of the Environmental Edict, where it conceivably could have been addressed Notwithstanding the vague formulations characterising Article 234, the extent to which ‘due regard to navigation’ is exceeded by the Russian legislation seems beyond even a liberal interpretation If, however, the Russian provisions are compared to the US legislation as a coastal state, nearly all the Russian rules may be said to fall within similar limits set by the 1990 United States Oil Pollution Act (OPA) for commercial vessels carrying oil.41 Similarities are found in the Canadian legislation as well: the Arctic Waters Pollution Prevention Act (AWPPA)42 and the Arctic Shipping Pollution Prevention Regulations (ASPPR).43 Only a few of the requirements contained in the Russian legislation actually exceed that of the US legislation: blanket fees, icebreaker-assisted pilotage and icebreaker leading The latter two activities may, however, also be required by Canadian practice in the Northwest Passage In 1992, a Canadian ice pilot was on board the Russian vessel Kapitan Khlebnikov; and a Canadian Coast Guard officer was on board the USCGC Polar Star in 1988 with the additional accompaniment of the CCGS John A 40 41 42 43 See Arts and 10 of the NSR Regulations; Arts 14 and 15 of the Economic Zone Edict; Arts and 15 of the Environmental Edict; and Art 11 of the Decree of the Council of Ministers of the USSR, June 1990, ‘On Measures of Securing the Implementation of the Edict of the Presidium of the USSR Supreme Soviet of 26 November 1984 “On Intensifying Nature Protection in Areas of the Extreme North and Marine Areas Adjacent to the Northern Coast of the USSR”’ (1990 Decree); an English translation is available in E Franckx, ‘Nature Protection in the Arctic – Recent Soviet Legislation’, International and Comparative Law Quarterly, Vol 41, 1992, pp 377–83 Public Law 101-380, Statutes, Vol 104, section 484 (1990) (codified at USC, Vol 33, section 2701) Revised Statutes of Canada, Chapter 2, section A-12 Text reprinted in ILM, Vol 9, 1970, pp 598ff Consolidated Regulations of Canada, 1978, Chapter 356, as amended 230 R Douglas Brubaker MacDonald.44 It is therefore in respect of fees that the legislation and practice of the USA and Canada is consistent, permitting only charges for specific services actually rendered Admittedly, the provisions compared are not always directly parallel The Russian requirement for the notification of an intended passage through the NSR and the approval of a request for leading are more formal and administrative than those under the OPA.45 However, the USA clearly has procedures for determining authorised passage upon sufficient proof of financial security Under the OPA, if foreign vessels cannot prove financial security, then denial of clearance, denial of entry into the USA or US navigable waters, detention at the place where the lack of evidence is discovered, and seizure and forfeiture within US navigable waters may result.46 Canadian enforcement measures under the ASPPR, the AWPPA and the Arctic Waters Pollution Prevention Regulations (AWPPR) appear less comprehensive than those of Russia or the USA, though they are rigorously enforced They are also based around a certificate, but one which shows compliance with both technical and potential liability standards.47 Vessels may be inspected and denied navigation if requirements are not met or if there is a danger of discharge The US design, equipment and construction standards, including double hulls, though unilaterally adopted, may now comply with MARPOL 73/78.48 The Russian standards are Arctic-specific and have been established unilaterally, though the Russian ice classes UL, L1, L2 and L3 may resemble the unilaterally established Canadian classes A, B, C and D, respectively.49 Discharge standards under the OPA are governed by means of liability for oil damages or threat thereof in navigable waters, the shoreline or the EEZ.50 For Russia the standards are also governed through liability for damages in the EEZ, but are not limited to oil; moreover, discharges may be totally prohibited in areas ‘adjacent to the northern coast’.51 Canada completely bans discharges in its 100-mile zone.52 Lesser forms for Russian leading, including with radio, aircraft and conventional pilot, may have counterparts in the provisions of the OPA53 and the 1990 Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act (Monitoring Act).54 Under the latter, pilotage and some escort for Arctic waters is required as well as oil tanker monitoring, though the functioning is advisory only Canada may now have year-round surveillance and control of shipping, compulsory pilotage and training.55 44 46 47 49 51 52 55 45 Franckx, Maritime Arctic Claims, pp 261–4 See OPA, para 1016(a) and (b) Ibid The scope of the term ‘navigable waters’ will be discussed below ASPPR, Schedule VIII and section 15; AWPPA, sections 12 and 15(3); and AWPPR Consolidated Regulations of Canada (1978), Chapter 354, as amended, section 12 See E Gold, Handbook on 48 Marine Pollution, p 82 OPA, paras 4109, 4110 and 4115 See Design Requirements, Appendix; and NSR Navigation Guide, p 324, referring to the Canadian 50 ASPPR, Schedule VIII OPA, para 1002(a) Arts 19(3), (9) and (10) of the Economic Zone Edict; and Art 11 of the Environmental Edict 53 54 AWPPA, sections and OPA, para 4116 USC, Vol 33, section 2732 D Pharand, Canada’s Arctic Waters in International Law (Cambridge University Press, 1988), pp 240–1 Navigation and pollution in the Northern Sea Route 231 For Russia, ships must satisfy special crewing and training requirements for navigating in ice.56 For the USA, requirements as to manning, training, qualifications and watchkeeping standards for foreign tankers appear to be generally stricter than international standards.57 For Russia, safety considerations are stated to give state agencies the power unilaterally to establish the Russian provisions.58 For the USA, no limitation of liability is applicable if there was a violation of a federal safety, construction or operation regulation.59 For Canada, the sixteen Arctic ‘safety control zones’ are the basis upon which ship construction and navigation standards are governed.60 On the whole, despite some inconsistencies and differing approaches, Russia, the USA and Canada seem to have – individually – established remarkably similar standards applicable in their Arctic EEZs, or substantial parts thereof Thus, while the theoretical limits indicated concerning ‘due regard to navigation’ may be sound, practice in the Arctic related to surface passage has developed towards favouring extensive coastal state jurisdiction Area of application: ‘ice-covered’ and ‘adjacent marine areas’ Article 234 governs ice-covered areas within the limits of the EEZ In addition, ‘the presence of ice covering such areas for most of the year’ is required The latter cannot be found either in Article 14 of the Economic Zone Edict or in Articles and of the Environmental Edict Only broader terms appear: ‘icecovered areas’, ‘areas possessing special natural characteristics’, and ‘severe climatic conditions and ice’ creating ‘hindrances or increased danger for shipping’ ‘Ice’ is not specifically addressed in the 1990 Decree; and in the NSR Regulations, reference is made only to ‘presence of ice’, ‘severe climatic conditions’, ‘ice’, ‘ice conditions’ and ‘ice-breaking’.61 The term ‘ice-covered’ thus remains unclear in Russian legislation One view distinguishes ‘ice-covered areas’ as being those Arctic seas that are covered by ice ‘for most of the year’, with an average ice cover for six months or more.62 This may be contrasted with 0.5 ice concentration for more than eight months a year.63 However, the USA apparently considers such definitional problems surrounding ‘ice-covered areas’ to play a minor role.64 Given the vagueness of exactly where Article 234 is to apply within the EEZ, it is perhaps not surprising that Russian legislation is somewhat ambiguous about limiting its own application to 200 miles The NSR itself may in some cases fall beyond the EEZ (see Figure 10.1), and it has also been claimed that Arctic states have special privileges with respect to the control of Arctic waters which may 56 58 60 62 63 64 57 Art of the Navigation Rules; and Design Requirements, p 323 OPA, para 4106 59 Art 14 of the Economic Zone Edict OPA, para 1004(c)(1) 61 Pharand, Canada’s Arctic Waters, pp 240–1 Arts 2, 4, 6, and 11 of the NSR Regulations N Koroleva, V Markov and A Ushakov, Legal Regime of Navigation in the Russian Arctic (Moscow: Russian Association of International Maritime Law, 1995), p 75 Franckx, Maritime Arctic Claims, pp 192 and 225 Interview with J A Roach, US Department of State, Washington DC, 27 June 1994 232 R Douglas Brubaker include the high seas.65 Articles and 17 of the Environmental Edict, as well as the title of the Edict itself, indicate that ‘marine areas adjacent to the northern coast’ are to be included, perhaps also encompassing the high seas.66 All articles of the 1990 Decree, except for Article 13, contain the term ‘marine areas adjacent’ Article does not clarify whether the provisions are also applicable beyond the EEZ; however, Article 12 specifies that Article of the Environmental Edict is to be applied to ‘marine areas adjacent’ to the Soviet northern coast within the Soviet economic zone, and applied to the NSR and ‘adjacent areas’ Article of the NSR Regulations specifies that the NSR is situated within the inland waters, territorial sea or EEZ adjoining the USSR northern coast and that it includes seaways suitable for guiding vessels in ice Due to the vagueness concerning leading in Article 7(4) of the NSR Regulations, not only in the four straits specifically mentioned in that provision but also ‘in other regions’, leading may be required in any part of the EEZ The mandatory nature of the measures, including leading, to be taken by the authorities – who ‘shall prescribe’ rather than ‘may’ or ‘should’ prescribe – may seemingly be argued to encompass the high seas, if these are understood as an ‘adjacent area’ under the legislation and claims indicated On the other hand, the scope of application might be seen as limited to the EEZ through use of the terms ‘within’ and ‘or’ in Article of the NSR Regulations Definite east and west limitations for the NSR are specified as ‘the extreme points of which in the west are the western entrances to the Novaya Zemlya straits and the meridian running from Mys Zhelaniya northward, and in the east, in the Bering Strait, by the parallel 66° N and the meridian 168° 58′37″W’ This may be further supported by Article 18 of the Environmental Edict which, while using the phrase ‘marine areas adjacent’, refers to other legislation, including the Economic Zone Edict which specifies the EEZ in its title.67 The USA is not apparently opposed to a broad interpretation of the icecovered areas regime – however, this is only within the EEZ Looking at the OPA, application is restricted to the EEZ, and to ‘navigable waters’ vaguely defined as ‘the waters of the United States, including the territorial sea’.68 Any limitation of scope to that less than the EEZ appears to be regulated mainly on an article-by-article basis, for example as seen regarding the application of US enforcement measures – the USA or US ‘navigable waters’ However, the two terms, ‘EEZ’ and ‘navigable waters’, also appear concurrently, for instance concerning the scope of application for liability for oil damages Normally, ‘navigable waters’ might be restricted to US internal waters and territorial sea, since that appears to be the ordinary meaning Additionally, the US Coast Guard has apparently so far not actively enforced the OPA in the Arctic EEZ.69 However, a liberal interpretation of ‘navigable waters’ 65 66 68 69 Kolodkin and Volosov, ‘The Legal Regime of the Soviet Arctic’, pp 159–60 and 164–5 67 Franckx, Maritime Arctic Claims, pp 179 and 219 See ibid OPA, para 1001(8) and (21) The EEZ is defined under the former as ‘the zone established by Presidential Proclamation Numbered 5030, dated March 10, 1983’ Interview with E Gold, Oslo, Norway, 23 June 1994 Navigation and pollution in the Northern Sea Route 233 might well open the way for full application of the OPA in the EEZ of the USA The USA claims that the environmental provisions of the LOS Convention are to be regarded as customary law.70 If the USA recognises the extensive Part XII, including coastal state prescriptive and enforcement jurisdiction over the EEZ of foreign states, it seems likely that the USA as a coastal state would possess implementing legislation of its own with respect to its EEZ Given the US history of staunchly espousing freedom of navigation, it is noteworthy that the USA then gives its official acceptance to Part XII with the subsequent restrictions on complete freedom of navigation This means that it accepts that the Part XII environmental benefits are necessary and that the negotiated limits to free navigation are acceptable Since the OPA is the central US legislation governing vessel-source pollution, it would seem reasonable to argue that, through the term ‘navigable waters’, the OPA is applicable or may become applicable in the entire EEZ of the USA In September 1999 it was announced that the US Coast Guard and federal law enforcement agencies will be allowed to enforce US environmental law and to board foreign vessels up to twenty-four miles from the baselines.71 The Canadian AWPPA and supporting legislation are limited in application to 100 miles from the baselines Thus, despite special Arctic conditions, the area beyond 200 miles from the baselines remains the high seas This is the limit under international law, regardless of vague provisions appearing in the Russian legislation or ambiguous statements that have been put forward as claims.72 Specially protected areas The ‘specially protected areas’ legislation of the Russian Federation allows the establishment of: special discharge norms and navigational practices; design, construction, crewing and equipment standards; sea lanes; reporting requirements; and suspension of navigation The meaning of unilaterally adopted rules for specially protected areas within the Arctic, itself an ice-covered area and thus already under the Article 234 regime, is less than clear.73 Russia proposed to the IMO that the Arctic be declared a special area under MARPOL 73/78;74 however, this initiative was reportedly delivered to the wrong IMO committee, and no further action was taken.75 According to the Environmental Edict, ‘specially protected territories, 70 71 72 73 74 75 Presidential Proclamation No 5030 ‘US Doubles Offshore Control Zone’, International Herald Tribune, 4–5 September 1999, p See also Churchill and Lowe, The Law of the Sea, pp 164–5 On specially protected areas in the context of Antarctic environmental protection, see Joyner, Chapter in this book On MARPOL 73/78 and special areas in polar regions, see Rothwell, Chapter in this book Interview with V Michailichenko, Director of the NSRA, at the Conference on Harmonisation of Polar Ship Rules (Harmonisation Conference), Göteborg, Sweden, 24 November 1994; and interview with K Grensemann, Head of German Delegation to the IMO, at the Harmonisation Conference, Ålesund, Norway, 20 November 1995 234 R Douglas Brubaker including marine areas, shall be created and, when necessary, protected zones shall be established’.76 In these areas, ‘all activity which disturbs natural complexes or threatens the preservation of the respective natural objects shall be prohibited’,77 and ice-covered areas may be closed to navigation for indefinite periods or be made subject to special navigational rules.78 Various organs led by the Russian Ministry of Merchant Marine can unilaterally draft navigational rules based upon safety and environmental concerns for specially protected areas,79 where the discharge of wastes, materials and articles is totally prohibited.80 Technical requirements for vessels are spelled out under the Design Requirements These have been completely based upon the provisions governing ice-covered areas It seems possible that additional design, construction, crewing and equipment rules could be developed for specially protected areas within the Arctic, rules that would amplify the effects of Article 234 These, however, would undoubtedly close designated areas to virtually all vessels Sea lanes are mentioned only in relation to specially protected areas, and this is where navigation is solely permitted.81 No procedure for including the IMO, in the sense of Article 211(6) of the LOS Convention, is provided in the above provisions for establishing sea lanes in specially protected areas For the Arctic they may probably be justified under the Article 234 ‘due regard to navigation [etc.]’ The extensive Russian enforcement measures, which are also applicable to specially protected areas,82 are necessarily in excess of Article 234, to the extent noted Though the relation between specially protected areas and ice-covered areas is unclear, Canadian legislation, and to a degree that of the USA, are similar to the Russian provisions for specially protected areas The ASPPR provides for sixteen Arctic zones, thereby restricting navigation for all vessels not complying with Canadian Class 1-10 icebreaker and A-E ice-strengthened vessels classifications throughout the year The OPA83 and the Monitoring Act provide for Arctic specially protected areas, the Prince William Sound and the Cook Inlet, which are governed by more comprehensive rules, though navigation may not be suspended completely Non-discriminatory laws and regulations Under Article 234, coastal states have the right to adopt and enforce nondiscriminatory laws and regulations regarding vessel-source pollution The main 76 79 81 82 77 78 Art of the Environmental Edict; see also ibid., Art Ibid., Art Ibid., Art 80 Arts and of the 1990 Decree Art 11 of the Environmental Edict Ibid., Art Leading and routing under Arts 3, and of the NSR Regulations as well as the NSR Navigation Guide seem to make a requirement analogous to sea lanes for the NSR, including icecovered areas Art 13 of the Economic Zone Edict; Art of the Environmental Edict; and Art 11 of the 1990 83 Decree OPA, paras 5001–7 Navigation and pollution in the Northern Sea Route 235 thrust of the Russian legislation is environmental protection and safety, thereby necessarily implying application to all vessels, including Russian ones The principles behind the NSR Regulations, as stated in Article (quoted above), include regulation of navigation, on the basis of non-discrimination These regulations are to apply to all vessels, regardless of nationality,84 and the implications from supporting legislation are the same However, the fees required under Article 8(4) of the NSR Regulations may indicate questionable adherence to non-discrimination requirements It seems doubtful that the current fee rate of US$4–12 per ton, depending upon the size of vessel, is also required of Russian vessels.85 What then is meant by ‘non-discrimination’? Does it refer to non-discrimination only among foreign, non-Russian vessels of different nationalities? Or does it refer also to nondiscrimination between foreign and Russian vessels? No clarification is given by the text of Article 234 However, arguments may be made surrounding the use of the terms ‘against’ and ‘among’ dealing with non-discrimination in other articles of the LOS Convention.86 In this context Article 234 seems to be situated in the ‘against’ cluster, since it safeguards the right of passage in relation to the environmental provisions, albeit in special, particularly adverse conditions Thus the adoption and enforcement of non-discriminatory provisions is probably meant to be interpreted in a non-discriminatory manner ‘against’ all vessels – the coastal state’s flag vessels as well as the vessels of any other state It might be argued that it is not discriminatory for a coastal state to differentiate between its own vessels and foreign vessels in its internal waters and territorial sea Nevertheless, as seen, due to the scope of Article 234 extending from the baselines to the EEZ, the non-discrimination requirement governing all vessels, coastal state and foreign, would seem likely to apply within the territorial sea as well This interpretation also appears supported by the practice of the states implementing Article 234, including Russia – with the exception of fees for services rendered That in turn would mean that the Russian fees, if they are to be justified under Article 234, must apply to all vessels It seems probable that the Russian practice on this point is contrary to this Specific Arctic practice supports the nondiscrimination requirements of Article 234, and it is only Russia which has a blanket fee structure Passage rights under both Canadian and US legislation are not dependent upon the payment of fees 84 85 86 See Arts 1(4) and of the NSR Regulations Interview with T Ramsland (Norwegian Coordinator for INSROP Sub-Programme III, ‘Economic Aspects’; former Lieutenant-Commander in the Norwegian Navy and Research Fellow at the Norwegian School of Business and Sociology), Bergen, Norway, 20 May 1996 M H Nordquist (editor-in-chief) with S Rosenne and A Yankov (eds.), United Nations Convention on the Law of the Sea 1982, A Commentary, Vol II (Dordrecht: Martinus Nijhoff, 1993), pp 226, 232, 376–7 and 462; and M H Nordquist (editor-in-chief) with S Rosenne and S N Nandan (eds.), United Nations Convention on the Law of the Sea 1982, A Commentary, Vol IV (Dordrecht: Martinus Nijhoff, 1991), pp 345–7 and 396–7 236 R Douglas Brubaker Application to state vessels The Russian provisions governing ice-covered areas are specifically stated as applying to all vessels.87 For vessels enjoying sovereign immunity, navigation in the ordinary sense is thus either greatly restricted or prohibited This scope of application of the Russian regime appears to be contrary to the provisions of the LOS Convention and customary international law related to sovereign immunity,88 nor has it any counterpart in US legislation.89 However, there may be some similarities in relevant Canadian legislation.90 Features of the Russian legislation which could be viewed as consistent with the LOS Convention include notification and authorisation of navigation of state vessels in the territorial sea Several states consider the passage of war vessels in a foreign territorial sea a priori not innocent.91 Additionally, Article 9(e) of the 1993 Law on the State Frontier of the Russian Federation92 specifically requires submarines to navigate in the territorial sea on the surface, which is consistent with Article 20 of the LOS Convention The USA may have been tempted to test the Russian regime, especially its application to state vessels as well as the high seas.93 Application of the Russian regime seems even less plausible in the case of submarines, to which the NSR Regulations regarding leading in ice would also apply Civil liability and compensation Article 235(3) of the LOS Convention requires states to cooperate in implementing and further developing international law relating to liability, compensation and dispute settlement Where appropriate, compulsory insurance or compensation funds are to be developed Russia is a party to the 1969 International Convention on Civil Liability for Oil Pollution Damage (CLC) and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention).94 It was also party to the now terminated Tanker Owners’ Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP).95 The owner of a vessel registered with a state party and carrying over 2,000 tons 87 88 89 90 91 92 94 95 See Arts 1(4), and 7(4) of the NSR Regulations; Art 14 of the Economic Zone Edict; and Art of the Environmental Edict Art 236 of the LOS Convention See Churchill and Lowe, The Law of the Sea, p 260 Nowhere in the OPA or the Monitoring Act is application to state vessels stated or implied See AWPPA, section 12 Franckx, Maritime Arctic Claims, pp 87 and 122 notes that exemptions can have been granted under section 12(2) J Shao, ‘The Question of Innocent Passage of Warships After UNCLOS III’, Marine Policy, Vol 13, 1989, p 66 On file with author Obtained from A Yakovlev (retired Admiral, Russian Navy, INSROP Project 93 Leader), 26 August 1995 Franckx, Maritime Arctic Claims, pp 193–5 Text reprinted in, respectively, ILM, Vol 9, 1970, pp 45ff and ILM, Vol 11, 1972, pp 284ff For the status of participation see the IMO website at www.imo.org Text reprinted in ILM, Vol 8, 1969, pp 497ff See ‘Ocean Orbit’, Newsletter (of the International Tanker Owners’ Pollution Federation), August 1997, p Navigation and pollution in the Northern Sea Route 237 of oil cargo is required to carry insurance or other security covering maximum liability.96 A certificate issued by the flag state verifying this financial security must be carried on board ship;97 the CLC certificate is probably the most important to Western insurers as far as oil is concerned.98 Under the Russian provisions a certain confusion governs Liability for serious damage caused by oil pollution and hazardous and harmful substances is now ‘virtually non-existent’, due to inflation.99 Under the 1981 Edict on the Amounts of Compensation by Ship-Owners for Losses Caused by Pollution of the Sea by Oil and Other Substances Harmful for the Life of People and for Living Resources of the Sea,100 a ship-owner must compensate for pollution damage caused, not exceeding 120 roubles per registered tonne and 12.5 million roubles per single polluting incident Article of the NSR Regulations requires a mandatory ‘certificate of due financial security with respect to the civil liability of the Owner for damage inflicted by polluting marine environment and the northern coast’, without which navigation is not permitted There appears little compliance with the CLC and the Fund Convention.101 According to Article of the 1990 Decree, conditions for insurance coverage would appear to be unilaterally determined by state officials In addition, the Russian certificate of insurance or other financial security for oil pollution damage may be ‘irrelevant for the purposes of Western insurance for the NSR’.102 On the other hand, there has been an ongoing process of harmonisation with international regimes, including the CLC and its 1992 Protocol, as well as the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention).103 Preparations have been made for Russia to ratify the 1992 CLC Protocol and the HNS Convention, although few further details have been provided and the process has, as of April 2000, not yet been accomplished for the former.104 The OPA is entirely a unilaterally adopted liability regime and thus exceeds the Russian provisions.105 The USA has not ratified any of the international liability treaties – including the CLC, the Fund Convention and the Protocols of 1992 The OPA was apparently enacted with the knowledge that it would make US 196 197 198 199 100 101 102 103 104 105 See CLC, Art VII Annex to CLC, Certificate of Insurance or Other Financial Security in Respect of Civil Liability for Oil Pollution Damage D Torrens, ‘Marine Insurance for the NSR – Pilot Study’, INSROP Working Paper, No (Lysaker: Fridtjof Nansen Institute, 1994), pp 32–3 A Kolodkin, O Kulistikova and E Mokhova, ‘Matters of Responsibility for Mariner Pollution under the Legislation of the Russian Federation’, INSROP Working Paper, No 88 (Lysaker: Fridtjof Nansen Institute, 1997), p English translation reprinted in Butler, The USSR, Eastern Europe, J 3, p T Scovazzi, Review of Kolodkin et al., ‘Matters of Responsibility’ (Appendix in ibid., p 1) Torrens, ‘Marine Insurance’, p 33 Text reprinted in ILM, Vol 35, 1996, pp 1,415ff See Kolodkin et al., ‘Matters of Responsibility’, pp 6–9 For an updated status, see the IMO website at www.imo.org Protocols of 1992 to Amend the CLC and the Fund Convention, in force 1996; on file with author, obtained from the Oil Pollution Compensation Fund, London Russia is not a party to either T Wagner, ‘The Oil Pollution Act of 1990: An Analysis’, Journal of Maritime Law and Commerce, Vol 21, 1990, p 573 238 R Douglas Brubaker adherence to the CLC and the Fund Convention plus Protocols impossible.106 Regulation in the OPA requires proof of sufficient guarantee to meet the maximum amount of liability under its provisions, and vessels not carrying such evidence may be subject to the enforcement measures noted.107 No limitation of liability to the established limits is allowed if the incident was caused through a violation of the federal provisions for safety, construction or operation.108 Canadian legislation requires that, prior to navigation, financial responsibility corresponding to potential liability must be established to the satisfaction of government officials.109 Strict yet limited liability is imposed on vessel and cargo owners for illegal environmental pollution damage and the costs of a government-ordered clean-up.110 Prior to navigation, a certificate must be obtained, giving evidence that the vessel has met the necessary standards.111 Although this is optional, in practice insurers require it, so a mandatory requirement of compliance with the specified standards is achieved de facto.112 Criminal responsibility Article 230(1) of the LOS Convention allows only monetary damages in cases beyond the territorial sea where foreign vessels violate domestic environmental legislation or international rules and standards for the prevention, reduction and control of marine pollution Article 230(2) makes the equivalent limitation for the territorial sea, with the exception of cases of ‘wilful and serious acts of pollution in the territorial sea’ Criminal liability may apparently arise for violations of environmental provisions governing the Russian EEZ under Articles 19 and 20 of the Economic Zone Edict Neither the 1984 Decree on the Procedure for Applying Articles 19 and 21 of the Edict on the Economic Zone of the USSR (Procedure Decree)113 nor the 1985 Statute on the Protection of the Economic Zone of the USSR (Protection Statute)114 provide any clarification However, Article 5(2) of the Protection Statute notes that agencies responsible for protecting the economic zone shall, when necessary, transmit materials for bringing guilty persons to responsibility.115 In clear support of this, Article 14 of the Environmental Edict asserts that persons guilty of violations bear criminal and other responsibility While fines appear applicable to environmental violations associated with ice-covered areas, if these violations ‘by their character’ entail criminal responsibility under Soviet/Russian law, then the latter attaches 106 107 108 110 111 113 114 115 P Edelman, ‘Oil Pollution Act’, Pace Environmental Law Review, Vol 8, 1990, p 12 OPA, paras 1016(a) and (b) Para 1004(a) gives limitations for liability and removal costs 109 OPA, para 1004(c)(1) AWPPR, section 12 AWPPA, section 6(1); and AWPPR, section 15 112 AWPPR, section 12; and ASPPR, Schedule VIII, section 12 Torrens, ‘Marine Insurance’, p 56 English translation reprinted in Butler, The USSR, Eastern Europe, F 2, pp 17ff English translation reprinted in ibid., F 2, pp 23ff See E Franckx, ‘The New USSR Legislation on Pollution Prevention in the EEZ’, International Journal of Estuarine and Coastal Law, Vol 1, 1986, p 170 Navigation and pollution in the Northern Sea Route 239 Are there no limitations as to penalties and fines for pollution violations in the Arctic? Article 11(h) of the 1990 Decree may provide some clarification: fines may be imposed by plenipotentiary officials for violations consistent with Article 14(2) of the Environmental Edict, which the 1990 Decree implements This provision refers solely to fines, and not criminal liability, which is set forth by Article 14(4) It seems probable that criminal liability may still attach under the ambiguous Article 14(4), for violations which ‘by their character entail criminal responsibility’ under prevailing Soviet/Russian legislation More recent clarification may be provided under Article 252 of the 1996 Penal Code and supporting legislation, whereby criminal liability arises for ‘marine pollution owing to violation of the rules regulating discharge of substances and material harmful to human health and marine life from vessels’.116 Fines may be imposed, and prison terms of two to five years added for such acts causing substantial harm From the above, it would seem that criminal responsibility would attach, in clear excess of Article 230(1) and (2) of the LOS Convention, except for cases of wilful and serious acts of pollution in the territorial sea If, however, we consider the Russian provisions in relation to US legislation, we find that criminal liability may well fall within limits similar to those set by the USA, applicable in the EEZ for commercial vessels carrying oil US federal legislation indicates generally that penalties for the discharge of oil or hazardous substances into navigable waters, the contiguous zone or adjoining shorelines, harmful to human health or the welfare of the USA, may result in fines of not more than US$10,000 or imprisonment for not more than one year.117 Further, under Alaskan legislation the criminal penalties may be up to one year’s imprisonment and fines of up to US$5,000 for spills less than 10,000 barrels, and up to five years’ imprisonment and fines of up to US$50,000 for spills involving more than 10,000 barrels.118 Also, in the Canadian Arctic zone, criminal liability for violations of environmental provisions may result in fines and imprisonment.119 Thus, though the Russian provisions for criminal liability theoretically exceed the limits indicated by Article 230 of the LOS Convention, practice in the Arctic is developing otherwise The possibility for criminal responsibility under legislation adopted by the USA, the main opponent to the Russian as well as Canadian regimes, would seem to provide unusually strong support             It is only the USA which, through its declarations and submarine navigation, actually opposes the Russian regime These declarations have been noted Navigation of submarines, however, has remained largely secret, although it would 116 117 118 See Kolodkin et al., ‘Matters of Responsibility’, pp 10–13 and 15–16, for various statutes USC, Vol 33, sections 1321(3), (4) and (5) See generally E Gold, Gard Handbook on Marine Pollution, 2nd edn (Arendal: Assuranceforeningen Gard, 1998), pp 157–8 and 175 119 Gold, Gard Handbook, p 166 Ibid., pp 130 and 194 240 R Douglas Brubaker appear that passages of US submarines have taken place in all the Russian maritime zones, including the territorial sea and internal waters.120 Though it is conceivable that the UK and France have also been navigating their submarines in the Russian Arctic, this is not fully documented.121 Although the US claims for transit passage also govern surface traffic, all US traffic by both commercial and state vessels appears to be substantially in compliance with the Russian regime The same may be said for other foreign vessels So far it appears that the commercial vessels of Finnish, Latvian and German flags have also been navigating in compliance with the Russian provisions.122 There have, however, been a few specific exceptions with respect to this compliance Here we should note the Vil’kitskii Straits incidents of the mid-1960s, which involved US Coast Guard and Navy vessels navigating in the Laptev, East Siberian and Kara Seas; the straits themselves were not entered.123 In these the Soviet authorities claimed that the NSR, along which authorisation of passage was required, traverses Soviet territorial and internal waters, including all west–east straits in the Kara Sea as well as the Dmitrii Laptev and the Sannikov Straits, which were claimed as historic waters The USA claimed that the straits were used for international navigation or contained high seas channels through which rights to navigation were unlimited The US vessels, however, withdrew An additional exception may be the several passages made by the Norwegian state vessel Sverdrup II in the Kara Sea in 1995 and 1996, with both US and Norwegian personnel on board.124 This military research vessel was on assignment, mapping the extent of Russian dumping of radioactive material,125 which included taking sediment samples Samples were collected ‘near the sites of the dumped reactors’ in Abrosimov, Stepovoy, Tsivolka and Techeniya Bays, which may indicate that internal waters as well as the territorial sea, though not the straits, were entered.126 These passages may have been regulated under one or more trilateral agreements entered by the Norwegian, Russian and US ministries of defence, including the 1996 Declaration on Arctic Military Environmental Cooperation (AMEC).127 120 121 122 123 124 125 127 V I Aleksin, ‘We Are Ready When You Are’, US Naval Institute Proceedings, March 1993, p 56; S Sontag, C Drew and A Drew, Blind Man’s Bluff – The Untold Story of American Submarine Espionage (New York, NY: Public Affairs, 1998), pp 158–83, 198 and 209–58 See W Reisman, ‘The Regime of Straits and the Third United Nations Conference on the Law of the Sea’, American Journal of International Law, Vol 74, 1980, pp 52–3 and 69 D Brubaker, ‘The Legal Status of Straits in Russian Arctic Waters – Internationality’, INSROP Working Paper, No 57 (Lysaker: Fridtjof Nansen Institute, 1996) See Roach and Smith, Excessive Maritime Claims, pp 200–7 US vessels have made several voyages in the mid-1980s, opposing the Canadian Arctic regime; see Rothwell and Joyner, Chapter in this book See S E King, D R Johnson and J Carroll, EPOCA-95 Cruise Report (Washington, DC: Naval Research Laboratory of the US Navy, 1996); interviews with A Ushakov, Deputy Director, NSRA; with T Ramsland; and with V Peresypkin, Director, CNIIMF – all at INSROP Joint Research Committee, Oslo, 17 April 1996; also interview with T Ramsland, Oslo, 28 August 1996 On Soviet/Russian dumping of radioactive waste in the Barents and Kara Seas, see Stokke, 126 Chapter in this book EPOCA-95 Cruise Report, p E-1 Text available at www.denix.osd.mil/denix/Public/Intl/AMEC/declar.html See an analysis by S G Sawhill, ‘Cleaning-Up the Arctic’s Cold War Legacy: Nuclear Waste and Arctic Military Environmental Cooperation’, Cooperation and Conflict, Vol 35, 2000, pp 5–36 Navigation and pollution in the Northern Sea Route 241 However, it is understood that a formal protest was later delivered by the Russian Foreign Ministry to the Norwegian Ministry of Foreign Affairs The Sverdrup II passages would seem to strike the Russian regime at one of its weakest points – its application to state vessels They are in effect a substantive protest by Norway to the Russian regime, although no protest issued by Norway has been officially published.128 Russian legislation in this respect is similar to that of Canada; however, no other state has attempted to regulate the navigation of state vessels in ice-covered areas, this being regarded as contrary to Article 236 of the LOS Convention Except for the Vil’kitskii Straits incidents, US protests to the Russian regime have been essentially declarative in nature These declarations, lacking enforcement, would seem only to be discredited by the US domestic legislation as a coastal state, the OPA.129 It is expected that the USA will require its commercial vessels to comply with all the Russian provisions, including fees, except for application on the high seas This we may conclude from the US practice in the Canadian Arctic, which has been characterised by compliance with domestic legislation,130 as well as from the USA’s own domestic legislation, the OPA Further, this would seem plausible from the current US role in the Arctic Council, as well as its participation in the preparation of the draft Polar Navigation Code at the Harmonisation Conferences, where the coast guards and maritime directorates of the Arctic littoral states and other interested states also took part.131 As to the Arctic Council, among its objectives is the promotion of cooperation and the coordination of action on common Arctic issues, particularly on sustainable development and environmental protection.132 The USA ostensibly does not consider that such disparity in its Arctic coastal and navigational practice sets a detrimental precedent elsewhere However, should the NSR become economically feasible, the issue of Russian fees may well come under US scrutiny Thus we may conclude that a broad interpretation of Article 234 is being practised through substantial compliance with the Russian provisions discussed, relating to surface traffic of both commercial and state vessels This is apparently the case despite US declarations to the contrary, and includes all known passages of foreign vessels along the NSR, except for those associated with the Vil’kitskii Straits incidents and Sverdrup II Should such compliance continue, it would seem difficult to argue that customary international law is not being formed for the Arctic The legal consequences of occasional passages by foreign submarines, generally held secret by all states, would seem indecisive as long as the coastal state has no official knowledge of this activity Lacking official knowledge, it has no opportunity to lodge an effective protest.133 The passage of submarines has been 128 129 130 131 133 Interview with D Mjaaland, Norwegian Ministry of Foreign Affairs, Oslo, 13 September 1994 See also Roach and Smith, Excessive Maritime Claims, pp 262 and 264 Ibid., pp 207 and 227 On the Polar Navigation Code, see Brigham, Chapter 11 in this book; see also L Brigham, ‘Commentary – An International Polar Navigation Code for the Twenty-First Century’, Polar 132 Record, Vol 33, 1997, pp 283–4 On the Arctic Council, see Vidas, Chapter in this book Churchill and Lowe, The Law of the Sea, p 94 242 R Douglas Brubaker an aberration in law of the sea earlier as well,134 and as such may not hinder the formation of customary law  Article 234 of the LOS Convention is formulated in very vague terms This makes it difficult to show whether the Russian Arctic legislation analysed in this chapter is in many respects in excess of Article 234 There are, however, several contentious features of that Russian legislation that appear to be in excess of current international law First, any application of the Russian legislation to the high seas finds no counterpart in US or Canadian legislation, nor has it any basis in international conventional and customary law Secondly, its application to state vessels has no basis in international conventional and customary law either; it finds no counterpart in US legislation, though the relevant Canadian legislation shows some similarities to that of Russia This requirement of the Russian legislation appears, however, to be substantially complied with in practice Though US submarines may have made submerged passages contrary to the Russian provisions, this has not been the case with surface-vessel navigation Thirdly, mandatory fees for passage along the NSR are acceptable under Article 26 of the LOS Convention, but only as payment for ‘specific services’ rendered for passage through the territorial sea Fees might be acceptable under Article 234, as scientifically sound for environmental protection In that case, however, they must be applied without discrimination, as well as levied as payment for specific services rendered The Russian fees appear to be blanket, and probably discriminate in fact Finally, the status of several other requirements is somewhat unclear Icebreaker-assisted pilotage, icebreaker leading and the introduction of specially protected areas, though generally exceeding the requirements of US legislation, have parallels in the legislation adopted by Canada The USA has established specially protected areas but permits navigation, including without the use of ice-breakers Canada has its Arctic ‘safety control zones’ upon the basis of which vessel navigational access through ice-construction standards are governed The Russian and Canadian requirements could probably also be argued to be justified under Article 234, with its provisions concerning ‘due regard to navigation [etc.]’ The substance of Article 234 is still under formation While Russia may be seen as ‘straining’ existing international law with its Arctic legislation, most of the requirements have counterparts in the legislation of both the USA and Canada Furthermore, navigation of foreign vessels through the NSR appears to be substantially in compliance with the requirements of the Russian regime It is only the USA, as a maritime power, which has most consistently opposed the Russian Arctic 134 M Leifer, International Straits of the World – Malacca, Singapore, and Indonesia (Alphen an den Rijn: Sijthoff & Noordhoff, 1978), pp 162–3 and 168–73 Navigation and pollution in the Northern Sea Route 243 regime, through declarations made by the US State Department and the US Navy, and through passages undertaken by US Navy submarines However, the surface navigation of US flag vessels has thus far apparently largely adhered to the Russian regime To the extent that practice among the Arctic states is both consistent and norm-setting, this probably indicates that a process of formation of customary international law for the Arctic is underway, defining and interpreting the contours of Article 234 through relevant state practice  ... (NSRA), including the Guide to Navigating through the Northern Sea Route (NSR Navigation Guide) and the Requirements for the Design, Equipment and Supplies of Vessels Navigating the Northern Sea Route. .. adjoining the USSR northern coast and that it includes seaways suitable for guiding vessels in ice Due to the vagueness concerning leading in Article 7(4) of the NSR Regulations, not only in the. .. within ice-covered areas These features of Russian legislation need to be examined not only in the light of Article 234 but also in the light of the relevant practice of other states 23 24 25 Regulations